The Supreme Court ruled Wednesday morning, by a 5-4 majority, to overturn a 1977 decision that let unions require public employees to pay a “fair share fee” whether they’d electively joined their union or not. Making non-members pay fees to cover collective bargaining violates the First Amendment, the court decided: “States and public-sector unions may no longer extract agency fees from nonconsenting employees,” reads the majority opinion by Justice Samuel Alito.
It’s every worker’s right, the court has now declared, to decide for himself or herself whether a public-sector union deserves monetary support. The court’s decision acknowledged the gravity of overturning 1977’s Abood v. Detroit Board of Education, and asserted the wrongheadedness of that ruling: “There are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse.”
Plaintiff Mark Janus was “thrilled” with the outcome, according to a Wednesday statement. But the decision wasn’t exactly surprising. “[P]ublic-sector unions have been on notice for years regarding this Court’s misgivings about Abood,” Alito wrote.
Plus, eight of the nine justices who heard oral arguments earlier this year haven’t wavered in their positions since hearing a similar case, Friedrichs v. CTA, that came to a 4-4 tie in after Justice Scalia’s death. That set up newcomer Neil Gorsuch to be the swing vote. During oral arguments, he asked no questions of either lawyer. In the end, he concurred with the majority.
In February’s oral arguments, Roberts foreshadowed the ultimate opinion. “The need to attract voluntary payments will make the unions more efficient, more effective, more attractive to a broader group of their employees,” Roberts said in questioning AFSCME’s lawyer during oral arguments earlier this year. “What’s wrong with that?”
In today’s ruling, Alito writes, “We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members.” It’s about time, he adds. “But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.”
Wednesday’s opinion, the court’s next to last of the year, acknowledged the immense fundraising challenge facing unions now that workers may opt out of paying for the operation of an organization whose actions they disagree with. But public-sector unions will have to spend more wisely: They should have to earn what they collect. And now that they’ll have to persuade rather than compel a free population of workers to sign up for representation, we’ll see how much loyalty they retain.
Public school teachers and staff, the largest set of workers still required to pay “fair share fees” in the 22 states where right-to-work laws haven’t prevailed, received extra acknowledgement in the court’s opinion. “The public importance of subsidized union speech is especially apparent in this field, since educators make up by far the largest category of state and local government employees, and education is typically the largest component of state and local government expenditures.” Collective bargaining by school employees, Alito went on, also involves inherently political issues at every turn: “Should teachers be given tenure protection and, if so, under what conditions? On what grounds and pursuant to what procedures should teachers be subject to discipline or dismissal? How should teacher performance and student progress be measured—by standardized tests or other means?”
Teachers who disagree with their union’s stances on these matters, whose constitutional right it is to opt out, probably won’t all hear about Janus in time to save their money, says teacher Kathy McCollum, who taught in Idaho—a right-to-work state—until she moved to Alaska 29 years ago. When she moved, McCollum was shocked to learn she’d have to pay for something she didn’t support. Only six years ago did she learn she could limit her payment to the “fair share,” according to the 1977 ruling. In recent years, she’s informed her colleagues at the small public school where she now works that they did not need to pay for full membership fee and could opt out of all but the purportedly non-political portion.
“When people find out that they can opt out of even the political portion, they’re surprised—and a lot of people do it. The union was afraid that word would get out,” she told me. When her Alaskan colleagues learned from her how much they could save, so many opted out at once that the union sent a representative to her school this spring, hoping he’d convince a few teachers to rejoin. “As far as I know, none did.”
Unions knew they had a hard blow coming: Membership, after the expected reversal of Abood, may shrink by as much as 50 percent. Justice Anthony Kennedy noted the unions’ existential nervousness during February’s oral arguments, pressing AFSCME’s lawyer on whether he thinks “this case affects the political influence of the unions.” When he denied it would, Kennedy challenged, “I can try to find a union newsletter which says, ‘Don’t worry about the Supreme Court, our political influence will be exactly the same as it was before, if this case comes out against us’?” And went on: “I’m asking you whether or not in your view, if you do not prevail in this case, the unions will have less political influence; yes or no?” At that the union lawyer at last allowed, “Yes, they will have less political influence.”
And indeed they will—less money, too. The NEA in particular, the largest public-sector union in the country, anticipated a costly blow in the aftermath of the expected ruling handed down today: Its budget for this year was $50 million less than the year before.
This is just the beginning, McCollum tells me, speaking from experience of just how long it takes to spread the work. Masses of public employees across the country will opt out, in steadily building exodus, she predicts. “The more people do it, the more people start talking.” They’ll really feel it when they can’t afford to buy politicians anymore. “And then, pretty soon, they’re going to be losing more and more money. It’s really all about the money.”
